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<br />7A - ATTACHMENT NO.2 <br />Page 1 0 <br /> <br />cases where appropriate functional or condition assessment methods or other suitable <br />metrics are available, these methods should be used where practicable to determine how <br />much compensatory mitigation is required. If a functional or condition assessment or <br />other suitable metric is not used, a minimum 1: 1 acreage or linear foot compensation <br />ratio must be used. (Id., subd. (f).) <br /> <br />While the new "Mitigation Rule" is more specific and detailed with respect to <br />determining mitigation for permitted impacts than former directives, there still is <br />considerable discretion given to the Corps and EP A in determining whether proposed <br />mitigation is adequate. There now is a least a regulatory basis for departing from the <br />traditional, formulaic "ratio" approach, and arguing for more watershed based, ecosystem <br />level habitat and water quality objectives in mitigation planning. <br /> <br />As noted above, USACE jurisdiction under CW A Section 404 extends to <br />"wetlands" that are adjacent to the waters of the United States, as that term is defined by <br />USACE regulations. "The term 'wetlands' means those areas that are inundated or <br />saturated by surface or ground water at a frequency and duration sufficient to support, <br />and that under normal circumstances do support, a prevalence of vegetation typically <br />adapted for life in saturated soil conditions. Wetlands generally include swamps, <br />marches, bogs, and similar areas." (40 C.F.R. ~ 328.3(b), emphasis added.) Under this <br />definition, USACE must consider whether, under "normal circumstances," the site <br />exhibits wetlands characteristics. Typically, USACE assesses the area in light of its <br />current conditions, not conditions that may have existed at some point in the past. Under <br />appropriate circumstances, however, USACE may consider conditions that would exist if <br />the site were not actively managed to eliminate its wetland characteristics. 2 <br /> <br />On June 9, 2009, DMB, Cargill, the US ACE San Francisco District Office and <br />USACE Headquarters participated in a pre-application meeting. At this meeting, the <br />participants discussed the applicability of the "normal circumstances" aspect of the <br />definition of wetlands to Cargill's operation. <br /> <br />On October 2,2009, USACE Headquarters issued a Memorandum addressing <br />what constitutes "normal circumstances" at the Saltworks project site. The Memorandum <br />traces the meaning of the phrase "normal circumstances" as it is used in USACE <br />regulations and guidance. The Memorandum then applies that phrase to the project site, <br />concluding: <br /> <br />2/ The policy behind this approach is to avoid a situation in which a landowner alters a site <br />in order to deprive the site of its wetland characteristics. The objective is to eliminate the <br />landowner's incentive to manage the site with the intent of reducing or eliminating USACE <br />jurisdiction. (42 Federal Register 37122, 37128 (July 19, 1977) <br /> <br />10 <br />